The Portland daily press., 1887-08-02
SUPREME JUDICIAL COURT.

The following cases were disposed Of yester-
day:
ton ct ais.
This is bill in equity by the executors of the
will of the late Abner COburn TO obtain from the
eout construction OF certain requests In that
will.
Mr. L. f. Webb of waterville opened the case,
and in an exhaustive argument for the executors
yisees mentioned in the will The WILL said
MIR Webb, is q charitable will and must be con-
this country and of England bearing upon charita-
BILE requests. The words 'to be funded, and the
income TO be expended annually" attached to the
nrst third, aud fourth items in the will may be re-
garded as predatory words not limiting the be-
quests or affecting or modifying their title in any
%ay Lne teStator understood S the Ito
ing with view to the production Of interest Mr.
Webb claimed, and cited numerous authorities to
violate the RUE against perpetuities that the rule
OF public policy which forbids estates to be indef-
nitely inaliepabe in the hands of individuals,
does not apply 10 charities
Mr.. d. ID. Stewart of st. Adams argued the case
Tor the heirs He claimed that as 10 the funded
egacies they fall within the rule against perpetui-
ties; that there should have been limitation to
lie or twenty years after; that there being no
such limitation lisa perpetuity and snspends
,he alienation OF the fund indefinitely and tile
legaces are therefore void.
In relation TO the s20oU0 to the town of Show
hogan 70 be funded, and one-half the income of
the same 70 be expended by Woman's Aid S0cie-
w formed for that purpose, he claimed. because
II Is TO a society not in existence but to be formed
no one knows when; 1t is also void for indefinite
ness.
Mr.. Stewart claims that-the legacy Of $4,000
TO Wayland Seminary Is void, because II Is not an
American Baptist Home Mission Society to be
applied IN aid OF iFreedmans schools is void for
indehniteneSs of purpose. 4tA
Judge Bonney replied briefly for Colby Uniyer-
sity aud the American Home Baptist Mission So
ciety; he claimed that the rule against perpetui-
ties does not apply TO charitable trusts but if it
did the gift Itself would be upheld the orders as
TO funding being simply direction as TO the man.
agement OF ne trust and not condition upon
The point made by Mr. Stewart is that taking all
the words together the legacy. amounts to nothing
leaving the title 10 the principal sum not vested in
anybody except by law In the testator's heirs"
But II Is well established rule of law in this
state that in eases Of gift OF the perpetual in
come OF sum OF money the donee becomes the
absolute owner OF the property. Therefore, if
title to the principal sum not yestng in in
anybody Except by law in the testators heirs /" it
vests by law at once and absolutely In the legatee
tors from any further responsibility. He claimed
that the gift to Wayland Seminary should be paid
70 the Baptist Home Mission Society, who created
owns and manages the school, and that such was
the intention of the testator.
Attorney General Baker, who appears for the
insane Asylum, replied to the argument of Mr..
Stewart, claiming that the legacies should be paid
as directed IN the requests and that there is
nothing IN them that Is indefinite or oifends the
The following, decision with rescript was an
nounced yesterday:
CUMBERLAND COUNTY.
Benjamin I. Andrews VS.. City of Portland.
Rescrtpt by Libbey, jim Andrews vs. King.
7! Me-, pa, this court held that the proceedings
OF the Mayor and Aldermen OF Portland for the re-
moyal Of the plaintiff from the Office Of city mar
shall In 1884, were not in accordance with law
and We're void, and that the plantiff held the le-
gal title to said office. The appointment Of De-
celle 70 said office to ill the supposed vacancy
was without legal authority, and gave him no le-
gal ute 70 the ONCE. While performing the du-
Ties OF the office he was an officer de Jdcto only.
The legal title TO the office carries with it tile
right 10 It's em0luments-an officer de facto has
no legal right TO them.-The plaintiff, having the
legal title to the ONCE OF city marshal during the
time embraced in this action, had the legal right
70 the salary. Its payment to Decelle by the city
with notice OF the plaintiffs claim is no defence 10
inns action 10 recover it, The city has no legal
right 70 have deducted from the salary the So
o. S4s6, which the jury found the plaintiff nad
NY MS personal labor while he was~.ss.seaineu
from performing the duties Of the .<<ss prevented
Exceptions sustained. oiilce.